Submitted 9th January 2017
This is the response by the Media, Communication and Cultural Studies Association (MeCCSA) to the DCMS consultation on the Leveson inquiry and its implementation.
MeCCSA is the professional association for the subjects of media, communications and cultural studies. This Association represents teachers, researchers, and students in its fields within UK Higher Education in over 80 institutions. The response draws upon research in these fields in relation to press regulation, ethics and standards and the relationship between media and democracy.
Our submission also includes an important appendix containing a letter signed by 43 academics working in media, communications and cultural studies raising serious concerns about the terms of the consultation itself.
You can read the full response below or download a PDF version.
Consultation questions on Section 40
MeCCSA is in favour of commencing Section 40 because it is a vital part of the system of press regulation established by the Royal Charter that will:
- Give access to justice for ordinary people who are victims of press abuse
- Protect the press (in particular, the smaller news publishers) from large legal costs.
- End political influence in press regulation.
MeCCSA is in favour of Leveson Part 2 because:
- The full extent of corrupt relations between press and the police remain unknown
- Public trust in the press will likely continue to be low until such an inquiry has taken place and effective remedies are put in place.
Question 1: Which of the following statements do you agree with?
Answer: (b) Government should fully commence section 40 now.
Question 2: Do you have evidence in support of your view, particularly in terms of the impacts on the press industry and claimants?
A healthy news media is often claimed to be the life-blood of democracy. This is because news provides, or should provide, the vital resources for processes of information gathering, deliberation and analysis that enables citizens to participate in political life and for democracy to function better. It is on this premise that this response has been constructed and it draws on evidence from scholarly research and analysis in the fields represented by MeCCSA. We are presuming therefore, that the government wishes to encourage a news media that operates in the public interest (Barnett, 2012) in order to enhance democratic practice. This requires a journalism that operates freely and without interference from state institutions, undue corporate pressures or fear of intimidation and persecution (Benson, 2010). In an ideal world this would mean that news media would survey the socio-political environment, hold the powerful to account, provide a platform for informed and illuminating debate, and encourage dialogue across a range of views.
Research shows that this is an ideal relationship that is hinged on a conception of independent journalism in the public interest – journalism as fourth estate linked to notions of public knowledge, political participation and democratic renewal. The reality is often quite different. The relationship between media and democracy is far from straightforward and depends on political culture and media policy; the nature of the economy and the market; media and communication technologies and formats among others (Baker, 2007; Curran, 2011; Curran et al. 2009, Dean 2011; Doyle, 2013; Hallin and Mancini, 2004; Lewis et al., 2008; Muhlmann, 2010). This response will deal mostly with the regulatory dimensions in full awareness that these do not operate in isolation.
Regulation can set out the limits of legally acceptable journalistic practice (Fielden, 2012; Ebervein et al. 2011; Koene, 2009; Mediadem, 2010; Thompson, 2011). Regulations regarding press freedom, freedom of information and public interest defences are often important protectors of the journalistic endeavour. Regulation can also protect the general public’s right to privacy from a hungry news media desperate for a scoop as well as offer financial support through public subsidy (as is the case in the UK with VAT exemption for newspapers). It is far too simplistic to suggest – as the press so frequently do – that all forms of government-backed regulation inhibit press freedom. Regulation can enhance plurality of the news environment, help temper the worst excesses of corporate news media and ensure that journalism which operates as a commercial endeavour does not lose sight of its relationship to democratic practice.
News media have been beset with many challenges over the last decade. These have had considerable impact on how they operate and the sorts of news they produce. Media and technological change has impacted on the news environment. A huge growth in the number of news outlets including the advent of and rapid increase in free papers, the emergence of 24-hour television news and the popularization of online and mobile platforms, has meant that more news must be produced and distributed at a faster rate than ever before.
The consultation document refers to the previous Secretary of State’s reasons for not commencing Section 40. These include pressures on the industry from online news distribution. Many commentators have claimed that journalism is undergoing a fundamental transformation due to the changing nature of technology. Research on the nature of this transformation considers it to be both a negative and a positive development. Since the mid 1990s a number of studies have explored the implications of the internet for journalistic practice (for example, Singer, 1998; Deuze, 2003; Garrison, 2000, 2001, 2003; Rivas-Rodriguez, 2003; Gillmor, 2004; Gunter, 2004; Fenton, 2010; Newman, 2016). They have looked at the nature of news content, the way journalists do their job, the structure of the newsroom and the shifting relationships between journalists, news organizations and their publics (Pavlik, 2001; Boczkowski, 2005, 2009, 2010, 2012).
The level and intensity of global market competition combined with technological change and broken business models has meant that in a corporate news world it is now difficult to maintain profit margins and shareholder returns unless you employ fewer journalists (Fenton, 2010). But fewer journalists with more space to fill means doing more work in less time often leading to a greater use of unattributed rewrites of press agency or public relations material and the cut and paste practice now known as churnalism (Hargreaves, 2003; Scott, 2005; Davies 2008; Lee-Wright, Phillips and Witschge, 2011; Phillips, 2014). Original and investigative newsgathering has suffered as a consequence (Davies, 2008; Davis, 2002; Lewis et al., 2008; Lewis and Cushion, 2009).
Many of these studies report that the internet brings dynamic new ways of collecting and reporting information into the newsrooms but these opportunities also carry greater risks relating to reliability and verification. Research (e.g. Phillips, 2014) points to the impact of new media on the news environment particularly in relation to commercial news practice. Researchers describe how established news organizations are encouraged by the speed of the internet to release and update stories before the usual checks for journalistic integrity have taken place (Gunter, 2003; Silvia, 2001); and how online content is increasingly determined by website audience metrics (Tandocir and Thomas, 2015).
This research also points to a news environment driven by the principles of commercialism wherein news organizations foreground rationalization (by cutting back on journalists) and marketization (through the increasing commodification of news) at the expense of ideal democratic objectives. If you combine the faster and shallower corporate journalism of the digital age with the need to pull in readers for commercial rather than journalistic reasons it is not difficult to see how the traditional values of professional journalism are quickly cast aside in order to indulge in sensationalism and deal in gratuitous spectacles and dubious emotionalism. Esser (1999) notes that national press coverage of politics in the UK is more “tabloidised” (defined as more oriented towards scandal and more cynical towards politicians) than in Germany partly because of the more intense competition among national newspapers. This brings intense pressures on commercial news practice and puts the public at increased risk of the abuse of press power through misrepresentation and intrusions into privacy.
Other analyses (Curran et al., 2012) rooted in models of media ownership show nothing more than a deeper entrenchment of concentrated corporate power (Paterson, 2005). The economics of news remains stacked against newcomers on the national news stage be it in traditional or new media. Concentration of ownership filters ever outwards to the internet – even though how to make online news profitable is still a puzzle waiting to be solved. As mainstream news providers plough more resources into online operations that are generally loss-makers, commercial pressures increase the temptation to rely on cheaper forms of newsgathering to the detriment of original in-depth journalism.
In these circumstances it has never been more important to have a Leveson compliant system of independent self-regulation. These practices make it more important, not less so to have a robust system of news accountability whereby citizens have full access to justice and the recent furore over fake news sites bears clear testimony to this.
The above analysis leads to a critical conclusion relating to Section 40: unethical journalism becomes more likely and requires a regulatory framework that can protect the public interest and prevent ordinary citizens from becoming victims of journalistic profligacy – a framework that Section 40 enables through massively expanding access to justice.
Self-regulation requires a strong ethical framework (Phillips, Couldry and Freedman, 2010; Belsey and Chadwick, 1992). Ethics refer to a shared sense of equity and justice, rooted in something deeper than obedience that enables a group or community to set standards which its members freely agree to abide by. To this extent, ethical frameworks can only be enacted fully if market pressures or owner preferences are also constrained (Winseck, 2008). News organizations have differing interests and very different ways of operating and do not necessarily have a shared ethical sense to which they can all refer. Journalistic practice varies from those editors and journalists who have the freedom of action and conscience to operate ethically and those who operate within a highly structured and competitive environment in which they are under heavy pressure to deliver stories by any means possible and often without the protection of a trade union. The influence and power of a corporate culture can wreak its own havoc and set its own agenda far more blatantly than any democratic government would ever dare.
In these circumstances, ethical journalism requires protection from pressures that might prevent investigations of abuses of power from taking place. Journalism that is under pressure from its commercial environment requires firmer rules to prevent the abuse of journalists’ power (and desperation to grab market share) to traduce innocent people. The relationship of the press industry to democracy will only ever function well when it is ethically accountable to the citizenry (Phillips, 2014).
The balance between private freedom and public responsibility as regards journalism is a complex matter and a crucial facet of the news media’s relationship to democracy. Freedom of the press has always been associated with the ability of news journalists to do their job free from interference from government (Muhlmann, 2010). But even in developed democracies the practices of regulation vary greatly, and critiquing how various degrees of regulation or non-regulation support democratic practice is far from straightforward. Self-regulation is often the form of journalistic accountability associated with the freedom of the press because it excludes governments from having any role in how journalism should be practiced.
Leveson was very careful to address the issue of self-regulation and was emphatic about the necessity of ensuring that government and/or any parliamentarian was not able to interfere in the regulatory process. The Government’s decision to delay the commencement of Section 40 breaks this principle at the very first hurdle placing it in a position of direct influence over the form of press regulation that the Royal Charter framework was designed explicitly, on a cross-party basis, to prevent. The Government should not hold the power of commencement – it is anti-democratic to do so and puts them at the behest of corporate media power.
Our ability to exercise our own democratic freedom as ordinary members of the public relies on the basic fact that governments are not distorted by private interest of multi-media conglomerates (Freedman, 2010). When concentrated corporate power pulls the strings then freedom is hard to come by for all but the most powerful. For ordinary citizens to have democratic freedom they must have access to justice when multi-media conglomerates break the law or go against the Editors Code.
Section 40 is a crucial part of the Royal Charter system of press regulation. Without it ordinary citizens will not have access to justice. Without Section 40 we will remain with an approach that has existed in the UK for over 60 years (see below) and has done nothing to protect the public interest in the provision of news and its contribution to democratic life and everything to encourage commercial news malpractice that contributed to the phone hacking scandal. Furthermore, in delaying commencement ministers are bending to the whims of the press and intervening in the process of independent regulation.
Question 3: To what extent will full commencement incentivise publishers to join a recognised self-regulator?
Only on full commencement of Section 40 is the Royal Charter Framework allowed to function. It is integral to its success. Lord Justice Leveson foresaw this when he designed his system of independent regulation believing that both carrots and sticks would be necessary to encourage the press industry to be fully accountable. Allowing the press industry to exert the power of veto over reforms by accepting their effective boycott of Parliament’s decision, immediately dissipates the independence of the regulatory framework. IPSO, the regulatory body of choice of most of the mainstream press, similarly fails the test of independence and fails to meet many of the recommendations contained in the Leveson report and the Royal Charter (MST, 2013). Non-commencement of Section 40 would remove any incentive to join a recognized regulator and runs the imminent risk of repeating the failures of the past.
It is worth reflecting on the history of failed press regulation (Curran, 2011). The first Royal Commission on the Press (1947-49) led to the press industry creating the General Council of the Press (1953). Dissatisfaction with its practice led to the second Royal Commission on the Press and to the General Council being replaced by the Press Council in 1962. In 1972 the Younger Committee report on Privacy was critical of the Press Council who rejected their concerns. In 1974 a third Royal Commission on the Press looked into editorial standards and freedom of choice for consumers. It suggested a new written Code of Practice. The Press Council again rejected the Commissions suggestions. In 1990 the Calcutt Committee was established to look into press intrusion. Calcutt recommended replacing the Press Council with a new Press Complaints Commission (PCC) and a new Code of Practice. In 1993 Calcutt reported on the progress of the PCC. He determined that sufficient progress had not been made and recommended the introduction of a Statutory Press Complaints Tribunal. Once more the press industry objected and the government failed to act on the recommendation. In 1995 the National Heritage Select Committee published a report on privacy and press intrusion and made recommendations on a new Statutory Press Ombudsman. The press objected and so yet again the government rejected the recommendations. In 2009 the PCC published a report in response to the Guardian phone hacking investigation ‘Phone Message Tapping Allegations’ (that was subsequently withdrawn on 6 July 2011). In July 2011 the Leveson Inquiry was announced. A cross-party agreement resulted in a Royal Charter designed to bring about independent and effective self-regulation of the press.
What this history tells us is that the press have consistently promised to self-regulate adequately and consistently failed to do so. The government, keen to maintain good relations with the press, has consistently bowed down to industry pressure. Non-commencement of Section 40 would be in keeping with this practice and history shows that we are likely to be back in the same position before too long. Meanwhile, the public will again be left without adequate redress from press misconduct.
It is also worth pointing out that in Ireland there exists a system of voluntary independent regulation with statutory incentives (Fielden, 2012). Here the Press Council and Press Ombudsman are recognized by Parliament under the provisions of the 2009 Defamation Act (Koene, 2009; Mediadem, 2010’ Thompson, 2011). Membership of the Press Council along with a track record of compliance is taken into account in defamation proceedings – this is a system that has been accepted by the Irish Sun (owned by News Corp), the Irish Daily Mail (Associated Newspapers), the Irish Daily Mirror (Trinity Mirror), the Irish Daily Star (Northern and Shell) with few problems reported. Indeed on April 25 2014 an article in the Irish Times noted that:
Without doubt the Press Council of Ireland has had a good first six years. It started life under a threat. At the launch of the council the then minister for justice, Brian Lenihan, said: “I don’t think I am breaching any State secrets when I tell you that not all my colleagues had boundless enthusiasm for this approach [the establishment of a press council] . . . I am bound to make it clear to you that if the media fails to show respect for the right to privacy. . . the government will have no choice but to proceed with its privacy legislation.”
The Press Council was established for two reasons, as far as newspaper proprietors were concerned, as a quid pro quo for libel reform, and to stave off the threatened privacy legislation. Both have been achieved – there is little talk of privacy legislation today, and libel reform has taken place, or as much reform as it likely for some time to come. Others had different agendas. Journalists did not want to find they were excluded, as had happened in the UK, so the NUJ has a place on the council.
The British press in Ireland did not want to be involved at all and there was quite a campaign to rubbish the council before it was established. In the end nearly everyone joined and have, by all accounts, worked well together for the past six years, alongside the public interests members (who have no media links, but represent the wider public). (Italics added)
Of course, we cannot know whether Section 40 will be enough of an incentive for newspapers to join a recognized regulator that will effectively hold them accountable but we do know that without it they certainly will not.
Another argument made against commencement in the Consultation document is the financial stress that would be placed upon the local press. As far as we can determine there is no concrete evidence that local newspapers who choose not to join a recognized regulator would face a flood of legitimate court claims and adverse cost awards under Section 40. Neither is there evidence that they would be swamped by arbitration claims if they joined a recognized regulator. Furthermore, the Royal Charter protects them from financial damage. A vital distinction must be made here between meritorious and unmeritorious claims. The possibility of unmeritorious claims arising was dealt with in Section 40(2)(b) that states that the courts will not award costs against a news publisher unless they are satisfied that ‘it is just and equitable in all the circumstances of the case’. If a claim merits costs provisions being invoked then this is the outcome of people properly vindicating their rights and newspapers being held to account.
The question must also be asked why the number of small news publishers who have already joined IMPRESS (as a recognized regulator) would have chosen to do so if financial ruin was a risk to them under this system. PhD research by Rachel Howells (2015) into the Port Talbot Magnet shows the vital service to the local community such newspapers provide and yet despite the financial pressures they face, they were one of the first news organizations to join IMPRESS. Organisations that have joined IMPRESS are relying on Section 40 being commenced to gain protection from rich individuals or corporations who threaten them with court cases on publication of stories they do not like. In such instances Section 40 offers them protection from the potential chilling of journalism because any possible claimant must proceed via low-cost arbitration. If the potential claimant insists on going to court the news publisher (e.g the Port Talbot Magnet who is a member of a recognized regulator) can be confident its costs exposure is limited. This is a very substantial boost for the freedom of the press and for investigative journalism at all levels of the industry. It is an incentive that should be allowed to work.
Consultation questions on Part 2 of the Leveson Inquiry
Question 4: Do you believe that the terms of reference of Part 2 of the Leveson Inquiry have already been covered by Part 1 and the criminal investigations? If not which terms do you think still require further investigation?
Since Part 2 could not begin until criminal trials had completed, the terms of reference are still entirely valid. Furthermore, other evidence has come to light regarding the extent of criminal conduct that took place in some news organizations that did not come out in Leveson 1. This includes the judgement in the Gulati vs MGN Ltd case that executives from Trinity Mirror gave false information to Leveson Part 1. More recently, the Hillsborough Inquiry also revealed collusion and cover-up between the press and police and Mazher Mahmood’s convictions point directly to extensive press/police collusion.
Question 5: Do you have evidence in support of your view? If so, please provide your evidence.
There is a further factor that should be taken into account in relation to Part 2 of the inquiry. Consistent surveys (e.g. BSA 2013, Edelmen, 2016) reveal that the public does not trust the press. Phillips (2016) notes that the UK press has the lowest level of public trust of any European country. The majority of our newspapers are no longer able to command respect. When the public does not trust the press to hold power to account; or worse when it feels that it is colluding with power, then democracy suffers. This can only be addressed through a thorough investigation that interrogates fully all the relevant issues.
Furthermore, it is only after Leveson Part 2 is completed that OFCOM would be properly able to make any new assessment of whether James Murdoch, the Chairman of Sky, and the CEO of Fox Inc (which owns either 39% or 100% of Sky depending on the merger outcome) is “fit and proper” to hold a broadcast license. This is a critical question looming on the horizon.
Question 6: Which of the two options set out below best represents your views?
- Continue the Inquiry with either the original or amended terms of reference
- Terminate the Inquiry
Answer: Continue the inquiry with the original terms of reference
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